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Frequent Slashdot Contributor Bennett Haselton writes with his latest which starts "If I were writing laws such that I wanted everybody to agree on how to interpret them,
I would use the software development life cycle: First, have lawmakers (analogous to "developers")
write drafts of the laws. Then a second group (the "test case writers")
would try to come up with situations that would be interpreted ambiguously under the law.
Then a third group, the "testers", would read the proposed law, read the test case situations,
and try to determine how the law should be applied to those
cases, without communicating with the law writers, the test case writers, or each other.
If there's too much disagreement in the third group on how the law should be applied,
then it's too vague to be a proper law. The only laws which made it through this
process would be ones such that when they were finally passed, most citizens (the "users") could
agree on how to interpret them, in cases sufficiently similar to the ones the test case writers
could come up with."

The irony is that this is how laws are supposed to work anyway.
Laws have been struck down as being
"void for vagueness"
on the theory that people ought to be able to read them and know what they mean. But what does
"vagueness" mean, if not that different people cannot independently agree on what a law means,
and even the nine highest-ranked legal experts in the country are split 5-4 on how to read it?
Some Supreme Courts, such as under William Howard Taft,
tried to reach
unanimous verdicts whenever possible
on the theory that it would persuade people of the correctness of their decisions. But unanimity
doesn't prove anything if it was achieved by agreeing to agree. Only if judges were put in
separate rooms and independently agreed on how to apply a law to a given case,
would that prove that the
clarity came from the text of the law itself. Legislators ought to start at least trying to
pass laws that would meet that test.

For some reason we seem to have just accepted the alternative as the status quo,
where laws are passed that express a general sentiment ("no spam with a 'misleading'
subject line") but nobody thinks that you could put two people in different rooms and
expect them to agree on how the law would apply in most cases. The parties involved
in the first court cases may have to spend ruinously large amounts of money to get to
the point where judges rule on how to interpret the law, only to find that lower court
judges disagree with each other. Meanwhile, anybody bringing a case now
has to look up not just the law, but reference the lower court rulings that support
their side, while their opponent of course references the other rulings. And even if
a case does finally get appealed up to the Supreme Court, which issues a ruling binding
on all lower courts, future researchers still can't find out the state of "the law" by
looking up the statute; they have to look up the statute and read the Supreme Court
ruling which states how the statute should be read (which may still be ambiguous as
applied to their current situation). All of this costs a lot of money, which results
in a huge waste of resources if both sides can afford it, and tilts the playing field
if only one of them can.

I wonder if the reason this is so widely tolerated is because people have absorbed the notion
that making and interpreting laws has to be hard, like brain surgery.
But brain surgery is hard because the brain is naturally complex and not man-made.
Lawyers also have to learn a lot of complex procedures, but not as complex
as brain surgery; the major difficulty in a
court case is guessing how the judge may interpret an ambiguous law (which is not
"difficult" so much as a matter of being lucky), and knowing the unwritten rules that govern
what actually happens (including which written rules are followed and which ones
are ignored). And there's no reason in principle
why this guesswork couldn't be reduced by having laws be more clear to begin with, and putting
the "unwritten rules" down on paper.

I watched a scaled-down version of this play out in the first few cases that I brought
against spammers in Small Claims court in Washington (although it involved only a waste
of resources, not money, since Small Claims doesn't allow lawyers).
You know the chorus, so all together now: Some judges said you could sue people out-of-state,
and some said you couldn't. Some judges said you could sue for statutory damages in
Small Claims, and some said you could only sue if you'd lost money. Some judges said
that you could represent a corporation that you own, and some said that if you're a
non-lawyer, you can't even represent your own corporation. Some said you could sue under a federal
law in Small Claims, and some said you could only sue under a federal law in federal court.
There are many more examples,
and those were just the contradictions about Small Claims court procedure generally, not
even counting the specific issues raised by the anti-spam law.

But as much as I've
complained about that in the past, I don't blame the judges for
that part. If the law is unclear, then judges have to come down one way or the other.
(What I've complained about is when judges say that their interpretation is "the law",
and that if you don't get it, you have to do more research. Lawyers know to take this
kind of comment with a grain of salt, but a non-lawyer who takes it at face value,
could end up wasting dozens of hours or hundreds of dollars in lawyer's fees before
realizing that the judge's interpretation was not actually the law, and a
different judge might have said the opposite. The judge should just be honest and say,
"Well, I'm the ref and this is how I'm calling it. On another day with another judge you
might get something else." I've had cases heard by some judges who basically said as much.)
Often both interpretations are reasonable, but that's the point -- if both interpretations are reasonable,
then there's something wrong with the way the law is written!

For example, there was the judge who said that you couldn't sue in Small Claims unless you'd lost
money, because Small Claims jurisdiction is limited to
"cases for the recovery of money only if the
amount claimed does not exceed four thousand dollars". Most judges interpreted "recovery
of money only" to mean that Small Claims courts can only award money damages, and not,
for example, order someone to return property. Two judges, however, said that "recovery
of money" implied that you could only literally "recover" money that you used to have
and then lost (relying on the common English meaning of the word "recover").
In legal jargon, however, "recover" often simply means taking something
from another party, and I won one such case on appeal after I
submitted three Supreme Court rulings as evidence that used the phrase
"recover statutory damages"
or "recover punitive damages" in that sense, since statutory damages and punitive damages
refer to money over and above what the plaintiff actually lost. (The original judges
did not change their minds, but one of them later
recused herself
from any future spam cases filed
by me, a move that I thought was questionable.)

Here's another example where there's no excuse for the law not to be completely clear,
since it's specifying a number. To appeal a Small Claims ruling in Washington, you
have to
post a bond
for "twice the amount of the judgment and costs, or twice the amount
in controversy, whichever is greater". Presumably the "amount in controversy" means the
amount that the plaintiff was suing for. But hang on -- in Small Claims you can't
possibly be awarded more than you sued for. And that means the
"the amount of the judgment and costs" will
always be less than or equal to "the amount in controversy"! So why not just say
"twice the amount in controversy"?

Or perhaps the "amount in controversy" only means the amount that the plaintiff and
defendant disagree on. So if you sue someone for $2000, and the defendant agrees on
the first $500 but not the remaining $1,500, and the judge's interpretation falls in
between and she awards you $1,200, how much of a bond do you post if you want to appeal?
$3,000, literally twice the "amount in controversy" between you and the defendant?
$2,400, twice the amount of the judgment? $1,600, twice the difference between what you
sought and what the judge awarded you? $4,000, twice the amount you sued for?

Beats me. When I first started out, I'd drive myself and my lawyer friends crazy asking,
"Well, what's the rule? What's the answer?" Well, now I know: There is no rule,
it just depends on what the judge says. Actually in this case, it depends on what the
clerk says -- because it's the clerk at the courtroom's front office, not the
judge, who handles the paperwork for an appeal and checks that you posted a bond for the
right amount, so you have clerks effectively deciding how to interpret the law.
(Just last week, after I sued a telemarketer for $1,500 and won a judgment for $565, the
telemarketer appealed by posting a bond for twice that amount, or $1,130. This doesn't
seem correct under any interpretation of the law, since the "amount in controversy", however
you define it, was greater than the "amount of the judgment" of $565.)

Sometimes, courts have settled on how to interpret a rule, but the interpretation is still
different from what the rule actually says. The Small Claims form that you serve on defendants
says, "You are further notified that, in case you do not appear, judgment will be rendered
against you for the amount of the claim as stated herein below..." This is not true -- you
can lose even if the other party does not appear (if the judge thinks, for example, that a
spam's subject line was not misleading enough). I understand that having that line on the form serves
a useful purpose by getting people to show up.
But it's still wrong, and everybody knows that
it's wrong, and it's on the form anyway.

A more serious example: When I first started suing spammers, if I thought they would show up
in court, I'd sometimes try to go to the trouble of catching them in a lie, like the guy
who showed up and claimed he didn't know anything about any spam, before I showed that I had
recorded a phone call
where he admitted that he could send out 5 million e-mails from Chinese servers for $500.
(Yes, taping the call was legal -- follow the link for more info.) The written rule is
that if you lie under oath in court, you can be arrested for committing a felony,
even if the case is only a civil
trial. But it turns out the unwritten rule is that perjury in a civil case is
almost
never prosecuted, and in most of my cases where I had proof that the defendant lied, the
best that would happen was that I'd just win the civil case anyway, and sometimes
not even that.
It's not just Small
Claims, either -- in one currently ongoing case, the defendant's lawyer
just filed an answer to our complaint
stating "Plaintiff subscribed to receive our e-mails".
There's absolutely no way their
attorney believes that to be true (with the spam in question being sent by mortgages spammers
from forged domains, it's hard to see how anyone could "subscribe" to receive those mails
even if they wanted to), but attorneys are required to submit such briefs with good faith
in their veracity. So why isn't he on the hook for that? Because of the
unwritten rule that courts just don't make a big deal out of it.

The point is that none of these issues is hard to grasp. The difficulty lies not in
understanding the problems, but in the impossibility of guessing how a judge will interpret
an ambiguous rule -- or, in the case of an unwritten rule which contradicts the written ones,
the difficulty of knowing the unwritten rule if you don't have a lawyer's experience.

So, ambiguous laws could be divided into three categories:

Laws and rules where there ought to be no ambiguity at all -- for example, rules about
who can be sued where, and for how much, and what size bond you have to post if you want to
appeal.
The fact that these laws are not clear enough to be universally agreed up on, is just silly.
(Again, if judges have a conference or an e-mail discussion and decide
on an interpretation, that doesn't mean the law as written was clear -- in fact, the fact that they had
to have that discussion, proves that it wasn't.)

"Unwritten rules" that are generally agreed upon by lawyers and judges, but which are not
actually written down or may even contradict the rules codified into law. Are trials and
proceedings actually conducted according to written rules? The acid test for this would be:
Hire a physics professor or somebody (so the legal establishment can't use the excuse of
calling him a dumbass) and have him look at the history of events and documents in a typical
civil case, from the vantage point of one side's lawyer. At each stage in the proceeding,
before the professor sees what the lawyer actually did next,
have the prof try to figure out what they would
have done, based on the written rules. (The question is not whether the prof would have come up with
the same strategy as the lawyer,
but whether they would have done something that was procedurally correct at all.) If there are
too many cases where the professor does something that technically conforms to the written
rules, but where the lawyer says it would have been rejected by the court as procedurally invalid
-- and if the same thing keeps happening with more and more smart non-lawyers trying the same
experiment -- then this suggests that either the procedures need to be changed to conform with the
written rules, or the written rules should conform with the procedures. (Because actually changing
laws and rules is so hard, a better idea would be to publish an "annotated version" of the court
rules which describes the procedures the way they are actually followed.)

Laws governing situations where ambiguity is hard to get rid of -- for example,
the part of the Washington
anti-spam law prohibiting "misleading subject lines". Here the question is whether a mushy
category like that could ever be clearly defined so that people would independently agree on
what it meant.

For the first two categories, bringing some clarity to those laws ought to be a no-brainer.
Some candidate like Ron Paul or Dennis Kucinich who can say whatever they want because they're
not going to win anyway, should make an issue out of it.
They wouldn't have to fix the problem all at once. They could just promote it as a core
American value that has been overlooked: Laws and court rules should be clear, and they
can't be called clear unless people can independently agree on how to read them.
The Left could get behind it because
it would bring more equality between the rich and poor in the legal system. The Right could
get behind it because they style themselves as the party backing judges who are "strict
constructionists" that apply the law as literally as possible. (Although at the risk of
alienating potential right-wing supporters,
I don't think that "strict constructionism"
would have much meaning until laws are clarified using something like this
process. To say that this or that judge is a "strict constructionist" under
our current laws, often sounds to me like a bunch of hooey, when the laws are too ambiguous
for anybody to strictly construct anything out of them.
Clarence Thomas, who is often
held out
as an example of a
"strict
constructionist" judge, has said that Tinker vs. Des Moines, the Supreme Court
case that extended First Amendment rights to high school students, is
"without basis in the
Constitution". But there's nothing in the First Amendment to say that it's limited
to individuals over
18, although ironically most "strict constructionist" judges and their supporters, read it as if it is.)

The third category of ambiguous laws would be more interesting to try to fix. Would it be possible
to come up with a standard for a "misleading" subject line that everyone could agree on? Probably
not. But I think you could measure the ambiguity of a law by using testers and test case writers
in the kind of procedure I suggested in the first paragraph, and you could get to the point where
there was less disagreement among the testers on how to interpret the law as applied to
typical subject lines.

If lawmakers knew in advance that their laws would be subject to that kind of test,
they would write them more clearly the first time around.
Why couldn't laws be written to include a list of hypothetical situations, for example,
specifying which situations the law covered and which ones it didn't? For example, a list of
sample spam e-mails to illustrate what the law means by a "misleading subject line".
Of course, the trouble with picking examples to illustrate your own points, is that people
tend to pick examples that fall squarely in the middle of the categories they're illustrating
("your refund has been processed" is misleading, "printer cartridges for sale" is not).
If the lawmaker included illustrative cases like this that were too-obvious examples of
what they were describing, then the "test case writers"
would be able to shoot down the proposed law by picking hypothetical cases that were closer to
the borderline (so that in the third phase, when the testers tried to apply the law to those
borderline cases, different testers would classify the borderline cases differently,
and the law would fail the vagueness test). To mitigate this, the author of the
law should pick illustrative examples that would be at or near the borderline, thus
providing clearer guidance as to where the boundary lies between a misleading and non-misleading
subject line. Which is what they should be doing in the first place.

Now, there are some problems that even the double-blind test for unambiguous laws, would not solve:

Judges could be systematically biased against a particular law (and even
proud of it),
in which case they can make things difficult for you even if the law is unambiguous.
Or, they might be so biased in favor of a law that they carry it further than the clearly
proscribed boundaries, as in the case of a judge who
upheld the conviction
of a man for
sending sexually explicit instant messages,
even though the law in question was clearly limited
to e-mails.

Judges may not take cases seriously from non-lawyers. In one series of cases that I
brought, I filed written motions with
two of the pages stuck together
by a tiny thread of
paper, so that after the judge ruled, I could examine the motions in the court file to see
if the thread was still intact. I found that about half the time, the judge had rejected
the motion without reading it.

This is a hard obstacle to overcome, especially after the
Commission on Judicial Conduct
ruled
that it was not a violation of the Code of Conduct for a judge to reject a motion without
even turning the pages. It wouldn't do any good to show that judges ruled against pro se
(self-representing) plaintiffs more often than against lawyers, because judges could claim it
was because pro se plaintiffs just made more errors (although it would be hard to use this excuse
to explain why judges rejected briefs without reading them at all).
One way to test this would be to have judges
conduct the trials "blind" so that they would see the briefs presented by each side, but
they wouldn't know whether the brief was submitted by a lawyer or a non-lawyer representing
themselves. However, this would require difficult changes to the way legal procedures are conducted

A simpler way might be: Once the "unwritten rule book" has been authored, such that your typical
non-lawyer in the above experiment knows what kind of briefs to submit at each stage of a trial,
have a legally trained third party
look at briefs written by the lawyer and briefs written by an average lawyer,
and see if they can tell which is which. If the third party can't tell,
then that indicates the non-lawyer is writing the briefs almost indistinguishably from a lawyer --
and then if a judge in a real trial keeps hammering them for "procedural violations", it would be
because of the judge's knowledge that the party was a non-lawyer, and not because of what the
party actually did. On the other hand, if the judge ruled against the person in the same proportion
that that person's briefs were being flagged as "obviously written by a non-lawyer" in the double-blind
experiment, then that would indicate the judge was being fair.

Even if a law is perfectly unambiguous, judges may disagree on whether it is
constitutional under the First Amendment, for example. Making these situations unambiguous
would involve tampering with the First Amendment, probably not a good idea in this or any
other political climate.

It wouldn't do anything about the corrupt process by which laws are often passed in the
first place, in exchange for campaign contributions. (As one
scholarly analysis
says,
"It's exactly
like buying a hamburger, except that under our laws, everybody must pretend that nobody is
buying anything, and nobody is selling anything.")

But notwithstanding these problems, I think any law that could pass the double-blind
interpretation test, would be an improvement over one that can't. First, because
it appeals to our sense of fairness to have rules clearly laid out. Second, if we really
followed the void for vagueness doctrine, laws would be able to pass that test anyway.
Third, economists have documented that there are economic benefits to having stability and
predictability in the law. Economist Thomas Sowell
wrote in Race and Culture
that in some historical periods, even when groups given second-class status under the law
(such as Jews in Eastern Europe or the Chinese in Southeast Asia), they were able to prosper
better than they did elsewhere, as long as their basic property rights were protected, and the
laws, even the discriminatory ones, were consistent and predictable!

This isn't something that would require a wholesale change in a state's constitution or
lawmaking procedure. Any legislator could voluntarily try this process out to see if it
resulted in laws that were easier for constituents to understand, and had a greater chance
of being interpreted by judges to give the result that the legislator wanted. Imagine
having an anti-spam law, for example, which said:

Misleading subject lines are prohibited. This includes not only subject lines which contain
false advertising, such as:

'lotion that cures baldness'

'legal copies of Windows for $20'

but also subject line that mislead the user into wasting time on a message. This is because a large
part of the harm done by spam is not due to the falsity of the advertisements, but due to the time
that users waste on each message before realizing that it's an advertisement. As such,
misleading subject lines include those that mislead the user into thinking that the message is from a
personal acquaintance, such as:

'Congratulations!'

'Touching base'

or a subject that misleads the user into thinking that the message is a 1-on-1 communication,
such as:

'Re: Question about your website'

'Shareholder request'

'urgent cancer call'

'Reminder: link to your website http://slashdot.org/'

[Except for the first group, all of these are subject lines from real spams that I received,
which Small Claims judges ruled were not misleading. Giving them the benefit of the doubt, I think
they are applying the standard of whether a spam constitutes fraudulent or deceptive advertising,
not whether it tricks you into opening it. But the original author of the anti-spam law,
when talking about other proposed measures,
stated
that the point of anti-spam laws is that
"Computer users should be able to know instantly what's spam and what isn't."]

If you were reading a series of legal statutes and came across one written like this,
it would be jarring,
like reading a Wikipedia article about cell division and then getting
to the part where someone wrote "And Bennett is gaytarded".
But that's because we're
accustomed to laws being ambiguous, not spelling out how they should be interpreted using
reasons and examples. I would like to see some lawmaker, somewhere, insert a law into their
state's legal code that looked and sounded something like this. The idea is so radical that
maybe it could only be done by an eccentric,
like the congressman who had Elmo
testify before a Congressional committee
before he was arrested
for bribery (the Congressman, not Elmo), or the
guy who passed a
House Resolution
commending Napoleon Dynamite ("any members who choose to vote 'Nay' on this concurrent
resolution are "FREAKIN' IDIOTS!"). Or maybe it would be up to
a regular lawmaker who thinks, what the
hell, let's write a law so that people can agree on what it means, and see if it starts a trend.

As for taking the rules that ought to be clear once and for all, like who can be sued where and for
how much, some 3%-getting-candidate should start talking about it.
When I read an article about how some lawsuit was stalled because a lawyer complained that it was
filed in the wrong district, I can barely keep reading because I get sidetracked thinking this is
such a pathetic reflection on our legal system. If the rule about where the suit can be filed is
unambiguous, why aren't the lawyers sanctioned for raising it as a false issue? If the rule really
is ambiguous, why hasn't it been made clear a long time ago?
If you support (or are) a politician or candidate
who wants to ask these questions, the field is wide open.

The problem with your argument, first and foremost, is that you accept the idea that our rights are those contained in the Bill of Rights. That's not true at all. We naturally have all of the rights that are explicitly not in the Constitution. That's why you see most modern Constitutional Amendments written as "The Congress Shall Have the Power"... every amendment, paradoxically, even those that are supposed to protect civil rights, works by further constraining the rights of the people.

To reiterate, the Constitution is a sort of a treaty between the States. It gives specific powers to the Federal government, and it was understood by the framers (Madison, in particular), to mean that the Federal government could only do those things explicitly enumerated in the Constitution. If anything, the Bill of Rights only works to bar the states from enacting certain laws, but even that is a disputable interpretation.

Ironically, social conservatives who argue the unchanging Constitution are just as wrong as liberals who argue the alterable constitution. Under the Constitution, you do have a right, within your state, to own firearms, to a right to privacy and more, because there is no federal power enumerated to allow the regulation of firearms, privacy, religion, and more. So, from the get-go, by adopting the view of both political parties that says you've only got the rights that the Constitution gives you, you've just shot your freedoms in the foot!

Now, a lot of the rest of the article speaks to some need for consistency. This is an absolute non-starter, as consistency in law is the root of all tyranny. In the United States, the states all have their own courts and their own legal frameworks. Some states are in fact "states", but other states are "other things", and those things all mean something. It means something that Pennsylvania calls itself a Commonwealth and Maryland calls itself a State. Within those states, a lot of that is based on the common law, and the common law is based on the traditions of the people who live in those states. Codified law tends to arise out of a need to set it writing that part of the common law that comes up in court too much or is otherwise the subject of dispute of some kind. So, if you go and try and have a consistent law across all the states, and codify everything, you really are just trampling on all of the rights of all the people because you are inviting disputes over things that are traditions.

What you have written sounds unreasonable. I believe that you are describing an absurd situation.

In your ideal scenario, would specialists in any field would be barred from influencing the field they specialize in?

How would you feel driving on a large suspension bridge designed by a committee of your "peers" (think of jury duty) vs. a bridge designed by humans who have spent most of their lives studying bridge design?

Many people who are interested in becoming legislators go to school to study law. They know that they will have use for an understanding of laws and lawmaking. Others are lawyers already, and become interested in making laws because they deal with them all day.

There is another group that I have noticed dominates local politics: real estate brokers, agents, and land owners. Like any group of specialists, these folks have an interest in laws and policies that they can exploit, since so many of our local laws have to do with the disposition and acquisition of land. Shall we bar these people too?

Who gets to be on that committee? This is a complicated problem. Barring lawyers from legislating is an unreasonable idea.